By Barbara Haga, December 11, 2019
This month we are looking at Cook cases from another angle. What are the charges when there is AWOL included in the time off?
Here is a scenario that a former class participant inquired about:
In 2018, Employee X was on 154 hours of approved leave. So far in 2019, Employee X was on approved leave 160 hours. In addition, Employee X was AWOL in 2018 for 568 hours and AWOL for 1120 hours during 2019. The absences appear to have been due to medical reasons. Also, there is a separate issue of failure to follow leave procedures.
The questions posed were:
1 – Can AWOL be counted as part of an excessive absence charge? If not, do we have sufficient absence under approved leave for the excessive absence charge?
2 – At the same time, can and should we have a separate AWOL charge?
Note: There will be another charge of failure to follow leave procedures.
AWOL and Excessive Absence
Remember that in Cook v. Army, 84 FMSR 5013 (1984), the Board cited OPM guidance from the old Federal Personnel Manual (FPM) that provided an exception to the general rule that an adverse action cannot be based on an employee’s use of approved leave, and then set out the Cook factors that we know and love.
The sentence from the FPM shouldn’t be read lightly. The exception is about leave that the agency has approved. Over the years, there were Board decisions that approved the use of excessive absence charges that included AWOL hours. McCauley v. Interior, 116 MSPR 484 (2011) was one of them.
McCauley is an important case because it clarified what kinds of leave could be included in an excessive absence charge. In McCauley, Interior had actually charged the excessive absences and AWOL separately. However, in its decision, the Board stated, “Because the efficiency of the service may suffer in the absence of an employee’s services, regardless of the type of leave used, we hold that whether the leave is sick leave, annual leave, LWOP, or AWOL will not be dispositive to a charge of excessive absences.” McCauley further clarified that FMLA hours could not be counted in the excessive absence charge since they are protected:
Because Congress’s clear intent when enacting FMLA was to provide job security for individuals who needed to be temporarily absent due to a serious medical condition (whether their own or that of a family member addressed by the FMLA legislation) and the law unambiguously promises this job security, use of FMLA in any calculation to remove an employee is inappropriate. Therefore, it is improper to consider FMLA absences as a part of the equation when evaluating if an employee has taken excessive leave.
Four years later, the case of Savage v. Army, 2015 MSPB 1, resolved the AWOL question. AWOL hours don’t fit under excessive absence charges:
Regarding the 800 hours of AWOL, it has been suggested in dicta that periods of AWOL may be included in a charge of excessive absences. McCauley, 116 MSPR 484, ¶ 10. However, while it is true that AWOL is a type of absence, the Cook holding was based on provisions of the Federal Personnel Manual (FPM) specifically concerned with excessive use of approved leave. See Cook, 18 MSPR at 611-12. Although the FPM was abolished in 1993, the Cook holding has survived for decades since, and we see no grounds for revising it now. Accordingly, to the extent that periods of AWOL are included within a charge of excessive absences, we will not consider those periods under the Cook standard, but instead will consider them as an AWOL charge.
How Much AWOL is Needed to Sustain a Removal?
The second charge in McCauley was AWOL. The agency cited that the employee had been AWOL for 22 consecutive days in 2009. Assuming an eight-hour workday, that’s 176 hours.
She had also been previously reprimanded for AWOL in November 2008. Even though the excessive absence charge was not sustained, the removal was sustained on the basis of the AWOL. In Crutchfield v. Department of the Navy, 73 MSPR 444 (1997), a removal was sustained based on 14 days of AWOL.
Many of you who still have tables of penalties might find that such tables identify excessive unauthorized absence as over five days, and the range of remedies often goes up to removal for the first offense. In other words, AWOL is a serious charge and you don’t need a lot of it to show an impact on the efficiency of the service.
How Many Approved Hours are Needed for an Excessive Absence Removal?
The case we often cite on this point is Gartner v Army, 107 FMSR 200 (2007), which I covered two months ago. Gartner was, of course, issued prior to McCauley and Savage. The employee was removed for excessive absence for 252 3/4 hours of LWOP and 80 3/4 hours of AWOL for a total of 333 1/2 hours of unscheduled absences over a period of roughly six months.
Back to Employee X
What would you do with Employee X?
Are there enough hours to support an excessive absence charge – 160 hours over 12 months? I don’t think that one will stand. Most employees earn 104 of sick leave and between 104 and 208 of annual a year – even using just what is accrued would be more a lot more than 160. I think one would be hard pressed to succeed there. But I also don’t think it’s needed.
The AWOL charge is strong — 1120 hours in a 12-month period is nearly 10 times the amount of AWOL that McCauley was removed for. With some good documentation about impact of those absences, it should be easy to make a case for removal on just this charge.
What about failure to follow leave procedures? If the AWOL charge is a result of the employee’s failure to follow leave procedures, then it will likely be merged with the AWOL since they are basically the same misconduct. See Westmoreland v. DVA, 83 MSPR 625 (1999). So, this one should be skipped as well.
That’s my two cents! Haga@FELTG.com